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Waiting For A Rational Debate On Abortion

[ Posted Thursday, August 10th, 2023 – 16:28 UTC ]

Sooner or later, America is going to have to have a rational debate over abortion. When the Supreme Court tossed out Roe v. Wade, it opened the door to any state setting pretty much any restrictions on abortion they chose to. Some of these are Draconian in nature, while others are slightly more reasonable. On the other side of the divide, blue states are enshrining the right to an abortion in their state's laws or constitution. These generally mirror the protections in Roe, with some alterations in some cases. But the real end goal for both sides is going to be a national abortion law, to finally legally codify what rights all American women actually have over their own bodies. Nothing short is going to work, since much like in the Civil Rights era some states are always going to go to the extremes -- on what is essentially a very basic human right. If the states refuse to uphold basic human rights, the federal government is going to have to step in and do so.

Politically, this is going to be very hard to do. It would probably require a modification of the Senate's filibuster rules to allow bills on basic constitutional rights to join budget bills in only needing a simple majority to pass the Senate. It will also likely require a trifecta of one party or the other simultaneously holding control of the Senate, the House of Representatives, and the White House. Even then it's not assured, though.

Whenever this debate is finally joined, we're all going to have to start speaking about things in more precise language -- and that definitely includes the media. Right now a sort of shorthand is being used which obscures what various restrictions on abortion actually mean. So I'll begin with a definition of terms.

What most people just call "abortion" in the political debate should more accurately be called "elective abortion." Of course, all abortions are "elective" in one sense, because the woman and her doctor elect to perform one. But the term's real meaning is an abortion that the pregnant woman decides upon for herself for any reason she chooses. Women get abortions for all kinds of reasons, and what is really under discussion (the whole "up to how many weeks?" question) is how much time they have to freely make such a decision for themselves without any governmental restriction at all. Or, to use a slightly outdated term: "abortion on demand."

But elective abortions don't cover the full scope of abortion. There are also "medically-necessary abortions." These are due to the fetus developing abnormally or the pregnancy itself being a threat to the woman's health or life. Such abortions can be performed early on (during the same "elective abortion" time period, in other words), although in very rare cases they become necessary late in a pregnancy.

Both of these abortion types have to be discussed in any rational debate about abortion, for different reasons. The first is an easy one to understand, because it involves drawing a line in pregnancy and saying: "You may elect to have an abortion for any reason before this line, but not after."

Pregnancy is measured by a rather strange baseline, because the most-often used scale begins before a woman is actually pregnant. When a doctor tests a woman and finds that she is pregnant, the woman is asked when her last period ended. Counting forward from that becomes the "gestational age" of the fetus. So a woman is "four weeks pregnant" when she misses her first menstruation, even though the pregnancy (in most cases) is almost certainly a lot closer to only two weeks old (sometimes this "fertilization age" is used to calculate a fetal term, but gestational age is what is almost always used to draft abortion laws). This is important to remember, because it adds two weeks to the equation that shouldn't even really count.

Bans on elective abortion run the gamut from zero weeks (all elective abortions totally banned) to the standard under Roe, which is "up to the point of fetal viability." Fetal viability is when the baby can be expected to survive outside the womb, and for most women this occurs at 22-to-24 weeks (each case is actually individual, but statistically this is where the majority happen). So we've got 22-24 at one end and 0 at the other.

The anti-abortion side is currently going through a lot of angst about where this line should be drawn. True believers -- the ones who believe that any abortion is "murder" -- want the Week 0 standard to reign everywhere. However, this is not a very popular position to take. The rest of the anti-abortion crowd is more pragmatic, to some degree or another. They are currently arguing about what week to choose for their line in the sand, and the general discussion has ranged from 6 weeks up to 20 weeks. The two most popular positions on this scale seem to have become 6 weeks and 15 weeks (although other standards have also been proposed).

Drawing a line at six weeks means a woman would have to figure out she was pregnant (which happens, at the earliest, at Week 4) and then schedule an abortion before the deadline -- which only gives her two weeks to do so. Every single time a sexually-active woman missed a period, she'd have to immediately get tested and, if she wished, schedule an abortion. In reality, this is pretty onerous, especially considering that pregnancy is only one of many reasons for irregularities in a woman's menstrual cycle. In other words, "two weeks late" is not a guarantee that a woman is pregnant, in a lot of cases.

If you look at a chart of when abortions happen in America, by gestational age, you can easily see that the biggest percentage of them happen during Week 7. And that almost all abortions (except for incredibly rare cases) happen by Week 20. Even drawing the line at Week 15 wouldn't affect most abortions (using data from 2016, when Roe was still in effect). But to allow for almost all abortions as they happened under Roe would mean setting that line no earlier than Week 20.

Drawing the line at Week 6, which has become a popular thing for GOP politicians in red states to do, is not popular at all with the public. It is unworkable for a majority of women. It is a serious restriction of the right of bodily autonomy, because it is unrealistic for so many women -- many of whom are not even aware they are pregnant before the ban begins. And this November, in Ohio, Republicans are about to see how unpopular a 6-week ban truly is. The Republican legislature passed into law a 6-week ban, but the state's courts have put it on hold, so Ohio's current abortion law still allows elective abortions through Week 22 -- almost exactly what Roe guaranteed. But the courts could rule at any time that the 6-week ban is in fact constitutional, so a ballot measure was placed on the November ballot which will enshrine the language of Roe into the state's constitution. And by every indication, this will pass with a large majority of the voters supporting it.

Of course, the recourse of ballot initiatives isn't available everywhere, but as time goes on the Republican Party should be able to see how massively unpopular their most-extreme positions truly are.

Senator Lindsey Graham has proposed a nationwide abortion law for Republicans to get behind, that draws the line for elective abortions at Week 15. This is a lot more reasonable than Week 6, obviously, as it would allow for at least two months after a woman figures out she might be pregnant to decide what to do about it. But pro-choice opponents point out that sonograms are usually scheduled just before or around Week 20, which would obviously be a better place to draw any sort of line short of the "pre-viability" line of Roe. But Graham has gotten the most pushback from his own side of the aisle, many of whom simply cannot accept a line that late. They quite correctly point out that banning elective abortions at Week 15 would still allow most of the elective abortions which currently happen to still happen. Which is not exactly the world they envisioned after the fall of Roe. Graham tried to appease these folks by allowing (in his draft bill) any state with more extreme conditions to keep them, but it didn't help him convince many people.

Where to draw the line -- 0 weeks, 6 weeks, 15 weeks, 20 weeks, or 22-24 weeks -- is an important part of the debate about abortion, but the other issue is also important. What abortions would be legally allowed after that date? These are usually referred to (without further explanation) as "the exceptions."

Here is one example of this, from the ballot initiative that Ohio voters will decide this November:

3. However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient's treating physician it is necessary to protect the pregnant patient's life or health.

4. As used in this Section, "Fetal viability" means "the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis"; and "State" includes any governmental entity and political subdivision.

It starts with the Roe standard of fetal viability. And then it says the legislature can pass laws prohibiting abortions after that point -- except for those deemed by the woman's doctor to be "necessary to protect the pregnant patient's life or health." It does not further define "health," you'll note.

The arguments over such exceptions center on three main things. The first two aren't even necessary to consider for a state like Ohio which is going to allow elective abortions up to viability, because any women who was raped or impregnated incestuously could get an abortion with no questions asked anyway. But in states with more stringent restrictions on elective abortions (especially those at zero or six weeks), the rape and incest exceptions are very important. Any woman who realizes she is pregnant after Week 6 (for instance) whose fetus was created through rape or incest would still be allowed to have an abortion (although in some states, she now has to prove it by filing a police report, since both rape and incest are crimes). But in states that go with Roe's fetal viability standard, it isn't even an issue since survivors or rape or incest have the same reasonable time frame as all other pregnant women.

The third issue in the exceptions is the diciest one, because precise definitions become necessary. Is it just "the life of" the pregnant person? Or does it include her "health" as well? And does "health" also include "mental health"? We've already seen how this is playing out in states like Texas, where doctors are now forced to allow a medical situation to get so bad that the woman's life is in actual danger before they are allowed to perform an abortion. Because a woman's "life" is an accepted exception, but just her "health" isn't. This is barbaric, obviously, and has led to horrific stories of women who have gone through agony which was not necessary at all before they could get an abortion (of a gestational problem that was about to kill them).

There is also a more-subtle line that needs to be drawn, over whether "health" includes "mental health" or not. If a woman tells her doctor she will attempt to commit suicide if forced to carry her fetus to term, is that enough of a trigger to allow the doctor to perform an abortion? It's a complicated question that will be very hard to legislate, in other words.

This has been a long column, but it is a complicated issue. A lot more complicated than the shorthand terms the media and most politicians routinely use. But it seems inevitable that sooner or later we're going to have to have this conversation on a national level. As a society, we will have to agree on some sort of national standard -- the same type of standard that Roe provided. How late can pregnant women have purely elective abortions? What exceptions to any ban which begins then will be allowed?

Personally, I am in favor of codifying Roe's standard intact. Elective abortions up to fetal viability. Medically-necessary abortions after that point, with all the discretion as to "medical necessity" left up to the doctor -- not the politicians. All state-level laws putting needless roadblocks and hurdles in the way of legal abortions need to be thrown out and superseded by a new federal law, to avoid the nibbling away at abortion rights that has taken place since the 1980s (even under Roe, in other words).

I realize that is too much for some people, and that some sort of compromise might have to be struck for a law governing the entire nation. But I do look forward to actually having a rational political debate on the issue, instead of the mishmash we are dealing with now. Women's rights shouldn't be dependent on what state they live in, because it is a civil and constitutional right that all Americans should enjoy equally.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


16 Comments on “Waiting For A Rational Debate On Abortion”

  1. [1] 
    nypoet22 wrote:

    the trouble with trying to compromise is that both sides believe deeply that they are in the right and that their side will eventually "win."

    how does someone who believes abortion is the murder of an innocent child talk to someone who believes it is the removal of a parasitic infestation? they don't. they can't. it's up to everyone else to put those two camps on the sideline and enforce a standard that both extremes will hate, but with which the rest of us can live.


  2. [2] 
    John M from Ct. wrote:

    I know you're trying to define two extremes, but I have never read of any pro-abortion/pro-choice argument that says that a fetus is a "parasitic infestation". Every pro-abortion position I've seen, in which the extreme seems to be that a woman should be able to have an abortion when she chooses to, full stop, nevertheless acknowledges the tragedy that a late-term abortion represents and the difficulty that any woman faces when realizing she needs to or wants to end her pregnancy at any point in the term.

    And yes, like you I have read about those who say a fetus from the moment of conception is an "innocent child" that it is "murder" to abort. But no, I've never read about the *Alien* imagery you refer to on the opposite end of the argument.

  3. [3] 
    MtnCaddy wrote:

    Today’s column title Waiting for a Rational Debate on Abortion is laughable. Seriously, do you actually expect anything like a “rational debate” from the idiot Christofacist crowd? For real?!? These are the people who claim that Democrats support abortion up to and even after birth! Good luck.

    Think about it. The subject is not addressed in the Hebrew Bible as Judaism never defined life as beginning at conception.

    But Moses said “Thou shalt not kill,” might be a rejoinder.

    Oh, but it’s okay to kill in self defense. It’s okay to kill when at war — in fact it’s highly encouraged, hello. And it’s okay for the State to execute live adults, even though the death penalty isn’t fairly applied to minorities, and Life without Parole is far cheaper than all the resources spent on litigation.

    Neither does the Christian Bible, that is, Jesus ain’t say that! You’d think he would have said something about it if it was important to God, amirite?

    The fact is, Satan’s Whore the Roman Catholic Church (I’m channeling my inner Evangelical here, ahem) was generally against the concept from the get go, give or take whether it was okay before quickening. I’ve read the entire Quran along with one of the Sunni Hadiths (sayings of The Prophet) and in them abortion is likewise not addressed.

    But let’s leave aside the fact that none of these Abrahamic religions bring the subject up. Even if they did spell it out explicitly it’s wrong to jam what is a personal religious belief down everybody’s throats. Freedom of Religion is meaningless without freedom from other people’s religion.

    Would someone put-leeze explain why The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… aka our 4th Amendment doesn’t settle this matter? How much more explicit does it have to be than “persons”?

    If I were King there would be no restrictions whatsoever on reproductive health care — don’t forget that that includes contraception. For putting restrictions solves a problem that doesn’t exist (like restricting voting rights addresses a problem that doesn’t exist). “Viability” is morally wrong because why should a rapist’s fetus have less protection than other fetuses? Doesn’t that rapist’s fetus have a soul, too? And what woman puts off having an abortion?

  4. [4] 
    Elizabeth Miller wrote:

    John and Caddy,

    I think we might be getting somewhere on this 'rational debate' thing ... to a place that actually makes sense! :) Chris and Joshua, not so much.

  5. [5] 
    Elizabeth Miller wrote:

    Don't get me wrong, though. Ahem. I'm all for compromise. Just not to place that exists in the middle of the two extremes. Not by a long shot!

  6. [6] 
    Mezzomamma wrote:

    Just for the record, a woman maybe pregnant and still have a period. And a woman whose periods are irregular or infrequent won't necessarily be alerted before a number of weeks have passed unless she was actively trying to get pregnant.

  7. [7] 
    nypoet22 wrote:


    I have met people in person who take the parasite view of pregnancy. Of course the incidence is not so high, but they exist. I'm sure there are more people on the miscarriage is murder side. However, that's partly by the cynical design of politicians who wanted to use it to motivate religious voters.

  8. [8] 
    nypoet22 wrote:


    Roe v Wade was a compromise position, and it was a pretty effective standard for fifty years. What evidence do you have that something more fair and just than roe is possible right now in the USA?

  9. [9] 
    Elizabeth Miller wrote:

    Nothing. Absolutely nothing. I've just been giving my opinion. :)

  10. [10] 
    Elizabeth Miller wrote:

    You know, I'm really getting tired of being asked for evidence or proof or to back up my opinions every freakin' time I make a comment here.

  11. [11] 
    Elizabeth Miller wrote:

    Here's another opinion ... when I think of America, these days, one word that doesn't spring to mind is possibilities.

  12. [12] 
    nypoet22 wrote:

    Not every opinion is equally valid. Requesting and evaluating evidence in support of an opinion is one of the ways we are able to tell the difference and potentially change our mind

  13. [13] 
    Elizabeth Miller wrote:

    My days of trying to educate and persuade have long gone.

  14. [14] 
    Elizabeth Miller wrote:

    What evidence do you have that something more fair and just than roe is possible right now in the USA?


    I'm not saying that it is possible. Obviously, it's not at all possible in the good ole USA, home of the brave and land of the free - not now nor possibly ever given how far off the rails the US has gone and is going.

  15. [15] 
    Elizabeth Miller wrote:

    Clearly, I am not in the middle on this issue but rather far closer to one of the extremes.

  16. [16] 
    Elizabeth Miller wrote:

    There is a smart strategy for pro-life Republicans who are open to compromise to improve their standing with voters on this issue but I haven't heard much about it from them...

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